UNLAWFUL POSSESSION OF A FIREARM
UNLAWFUL POSSESSION OF A FIREARM
As seen with Texas Open Carry and Campus Carry laws, Texans are proud of their right to own and possess firearms. Protecting our families and ourselves is something very personal and something we take very seriously. The possibility of having our right to possess a firearm taken away by the government is a real fear for anyone who supports the second amendment.
While most will agree that the right to bear arms is of extreme importance, most will also agree that there must be some restrictions on the right to possess a firearm. Under Texas law and under Federal law, there are some very clear restrictions on who possess a firearm – specifically when a person is convicted of a crime. Our Fort Worth criminal defense attorneys defend gun charges and weapons charges in State and Federal court and strive to help Texans maintain their rights to own, possess, and use firearms for protection and sport.
Texas State Firearm Restrictions for Persons Convicted of Certain Crimes | Fort Worth Gun Charges Attorneys
There are certain legal restrictions in Texas when a person may be own, possess, or transfer a firearm or ammunition. In addition to Federal criminal penalties, here are two of the most common firearm restriction under Texas law.
Convicted Felon and Unlawful Possession of a Firearm | Texas Firearm Rights Defense Attorneys
Under Texas Penal Code 46.04, if a convicted felon possesses a firearm anytime or anyplace during the 5 years after they’ve been convicted of the felony and released from prison or probation they can be found guilty of unlawfully possessing a firearm. The general rule is that convicted felons in Texas cannot possess a firearm.
Possessing a Weapon as a Felon After 5 years ONLY in the Residence
Once the 5 year period mentioned above has expired, a felon can possess a firearm ONLY where that person lives. Texas Penal Code 46.04 (a) (2). But the law is absolute and clear that a convicted felon is still prohibited from possessing a firearm anywhere else.
A person convicted of Unlawful Possession of a Firearm by a Felon can and likely will face a 3rd degree felony charge and possibly up to 10 years in the Texas Penitentiary and up to a $10,000 fine.
NOTE: The State law allowing convicted felons to possess firearms at their residence after 5 years from release from prison or probation conflicts with Federal Law. Under Federal Law, a convicted felon CANNOT possess firearms at any time or at any place after conviction.
If I am a convicted felon, can I get my right to possess a gun or other firearm back?
The only way that you could possibly get your right to possess a gun or other firearm back is by way of a full pardon. Our governor rarely grants pardons and the chance of getting a pardon on your offense is slim. If you cannot obtain a pardon, and you’ve been convicted of a felony, then you will not be able to gain back your right to possess a firearm after being.
What does it mean to possess a firearm in Texas? | Gun Rights Defense Attorneys
Possession is defined very broadly in Texas and can mean a lot more than just holding a gun in your hand. “Possession” under Texas means, “actual care, custody, control or management. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.”
This definition of possession in Texas provides for numerous different ways for a person to be found in possession of a gun or other firearm. A person may simply be in the same vehicle as a gun and the evidence could prove to be enough to show that that person has control or management over that gun. A person may also simply be in the same house as a weapon and the evidence could prove to be enough to show that that person has control or management over that weapon.
The bottom line is that “possession” for the purposes of being in possession of a firearm by a convicted felon is defined very broadly and law enforcement certainly uses this to their advantage.
Can I hunt in Texas as a convicted felon? | Fort Worth Gun Charges Defense
Not if it involves possessing a firearm. Under State and Federal law, a convicted felon is prohibited from possessing a firearm, even if the sole purpose of possession is for hunting. Even if a convicted felon is in the same vehicle as another individual who’s lawfully in possession of a gun and hunting, law enforcement could still place the felon under arrest and potentially convict the felon of unlawful possession. (See the definition of “possession” above).
Firearm Restriction for Persons Convicted of Misdemeanor Assault involving Family Violence
In addition to the law prohibiting convicted felons from possessing a firearm, the law also prohibits persons convicted of misdemeanors involving family violence.
Texas Penal Code 46.04 (b) prohibits a person who has been convicted of a misdemeanor assault involving a member of a person’s family or household under Texas Penal Code 22.01 from possessing a firearm anytime before the 5th anniversary of the release of that person from jail or release from probation.
The same 5-year period for convicted felons also applies to persons convicted of offenses involving family violence. After this 5-year waiting period, a person convicted of an assault involving family violence may possess a firearm under Texas State law.
A person convicted of unlawfully possessing a firearm after a family violence conviction will face a class A misdemeanor and up to 365 days in jail and up to a $4000 fine.
NOTE: The State law allowing persons convicted of family violence misdemeanors to possess firearms after 5 years from release from prison or probation conflicts with Federal Law. Under Federal Law, a persons convicted of a family violence misdemeanor still CANNOT possess firearms at any time or at any place.
Convicted Felons and Unlawful Possession of a Gun or Firearm under Federal Law
Federal law is stricter than Texas State law when it comes to possessing a firearm after being convicted of either a felony or misdemeanor involving family violence.
Federal law (18 U.S.C Sec. 922 (g)(1-9) prohibits the following from possessing, shipping/transporting, or receiving any firearm or ammunition:
- a person convicted of a crime punishable by imprisonment exceeding one year; (which includes all felonies in Texas – even if a person pled guilty and received deferred adjudication due to the federal definition of “conviction”)
- a person who is a fugitive from justice;
- a person who is an unlawful user of or who is addicted to a controlled substance;
- a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
- an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
- a person who has been discharged from the Armed Forces under dishonorable conditions;
- a person who, having been a citizen of the United States, renounces his citizenship;
- a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child;
- a person who has been convicted of a misdemeanor crime of domestic violence. (This includes deferred adjudication under the federal definition of “conviction”)
As it relates to the Texas law, Federal law prohibits a person from possessing a firearm even if allowed to under the “5 year” provisions of Texas law.
A person convicted of unlawfully possessing a firearm under federal law faces ten years imprisonment and/or a $250,000 fine.
What if I have no conviction because I received deferred adjudication? Can I possess a gun or firearm after deferred adjudication?
Not under Federal Law. The Federal Government defines a conviction to include any plea of guilty or no-contest, even if that plea resulted in deferred adjudication probation. So, under federal law, a person who successfully completed deferred adjudication for either a felony or misdemeanor involving family violence is prohibited from possessing a gun or other firearm. A person may be able to possess a firearm under Texas state law, but federal law clearly prohibits them from possession.
Contact one of our Fort Worth Gun Charges Defense attorneys if you need more information regarding unlawful possession of a firearm by a convicted felon or if you’ve been convicted of a misdemeanor involving family violence.
It’s clear that both Texas and Federal laws set out the potential for strict penalties for unlawfully possessing a firearm. If you are charged with unlawful possession of a firearm by a felon or otherwise, you need an experienced criminal defense attorney who can help defend the potential for conviction and punishment under these provisions.